Arrest Is Vitiated If Accused Is Not Produced Before Magistrate Within 24 Hours, Court Holds; Appeal Dismissed

A bench of Justices Abhay S. Oka and Ujjal Bhuyan heard an appeal by the Directorate of Enforcement challenging a High Court order that granted bail to a respondent accused under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA). The central issue before the Court was whether the respondent's arrest and detention complied with Article 22(2) of the Constitution and the statutory requirement of production before a magistrate within 24 hours.

The Court dismissed the appeal and upheld the High Court's order granting bail, holding that the respondent's arrest was rendered illegal because he was not produced before the nearest magistrate within 24 hours of being taken into custody pursuant to a Look Out Circular (LOC). The Court observed that the obligation under Article 22(2) had been incorporated into Section 57 of the Cr.P.C. and applied to PMLA proceedings by virtue of Section 65 of the PMLA. The Court emphasized that where an arrest stood vitiated for constitutional violation, it was the duty of the court dealing with bail to release the accused because "the arrest in such cases stands vitiated." The Court, in its reasoning, observed: "This argument cannot be accepted. Admittedly, the LOC was issued at the instance of the appellant - Directorate of Enforcement. By executing the LOC, the Bureau of Immigration detained the respondent at IGI Airport from 4th March 2022 on behalf of the Appellant. The finding of fact recorded in paragraph 10 is that undisputedly, the physical custody of the respondent was taken over by the appellant from the Bureau of Immigration at 11.00 hours on 5th March, 2022. Thereafter, at 1.15 hours on 6th March 2022, an arrest memo was prepared by ED at Raipur. He was produced before the Court at 3 p.m. on 6th March, 2024. The perusal of the arrest order(Annexure p-1) shows that the typed order was kept ready. The date and time of arrest were kept blank which appear to have been filled in by hand. Admittedly, the respondent was not produced before the nearest learned Magistrate within 24 hours from 11.00 a.m. on 5th March, 2022. Therefore, the arrest of the respondent is rendered completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India. Thus, the continuation of the respondent in custody without producing him before the nearest Magistrate within the stipulated time of 24 hours is completely illegal and it infringes fundamental rights under clause 2 of Article 22 of the Constitution of India. Therefore, his arrest gets vitiated on completion of 24 hours in custody. Since there is a violation of Article 22(2) of the Constitution, even his fundamental right to liberty guaranteed under Article 21 has been violated."

Background The dispute arose after the Directorate of Enforcement issued a Look Out Circular against the respondent, following which the Bureau of Immigration detained him at IGI Airport. The High Court recorded factual findings from the case diary and orders, noting that "it is crystal clear that the applicant was detained and taken into custody at 18.00 hours (6 pm) on 04.03.2022 at IGI Airport, New Delhi when the Bureau of Immigration executed the LOC ... It is also not in dispute that ED took physical custody of the applicant from the Bureau of Immigration at 11.00 hours (11 am) at IGI Airport on 05.03.2022 and brought him to Raipur ..." The Enforcement Directorate prepared an arrest memo subsequently and produced the respondent before a magistrate more than 24 hours after custody had commenced. The High Court concluded that the failure to produce the respondent within 24 hours violated Article 22(2) and thus vitiated the arrest and infringed Article 21 liberty rights. The Supreme Court agreed that Section 57 Cr.P.C. applied to PMLA cases by virtue of Section 65 and confirmed that when fundamental rights under Articles 21 and 22 were breached in the course of arrest or detention, bail must follow because the arrest stood vitiated. The appeal was dismissed and the High Court order granting bail was affirmed. Pending applications were disposed of.

Case No.: SLP (Crl.) No. 1136/2023; Criminal Appeal No. ___/2025; Reportable Judgment: 2025 INSC 141 Case Title: Directorate of Enforcement v. Subhash Sharma Appearances: For the Petitioner(s): Mr. Suryaprakash V. Raju, A.S.G.; Mr. Mukesh Kumar Maroria, AOR; Mr. Merusagar Samantaray, Adv.; Mr. Arkaj Kumar, Adv.; Mr. Ashok Panigrahi, Adv.; Mr. B.K. Satija, Adv.; Mr. Annam Venkatesh, Adv.; Mr. Zoheb Hussain, Adv.; Mr. Arvind Kumar Sharma, AOR, Adv. For the Respondent(s): Mr. Shivam Batra, Adv.